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|BAVA KAMA 95 (30 Av) - Today's study material has been dedicated by Al and Sophie Ziegler of Har Nof, Yerushalayim, in honor of the Yahrzeit of Al's father, Bernard B. Ziegler - Binyamin Baruch ben Avraham (and Miryam), which occurs on 30 Menachem Av.|
R. Nachman says that the decree of Rebbe that a Gazlan doesn't have to pay for what he stole only applies if the stolen object is no longer in existence.
If someone steals a beam and uses it when he builds a house the Rabanan decreed that he may pay the value instead of the beam in order to encourage him to do Teshuvah.
If someone steals a cow and it gives birth or he steals a sheep and he shears the wool R. Meir says that he must return the offspring or the wool along with the cow or the sheep. (1)
R. Yehudah says that he may keep the offspring or the wool and he must return the cow or the sheep and pay the difference between the value that the cow or sheep is worth now and how much it was worth when he stole it.
If someone steals an animal or servant and they aged he must pay the value that it was worth at the time that he stole it according to the Tana Kama
R. Meir says that that the servant may be returned as is and for the animal he must pay the value that it was worth at the time that he stole it. (2)
Rav says that the correct version is that R. Meir holds that he must pay for the value of the servant at the time it was stolen and the Rabanan hold that he may return the servant as is.
If a person instructs a craftsman to dye his wool one color and he dyed it a different color according to R. Meir he must pay the owner the value of non-dyed wool. (3)
If someone sells a stolen field and the buyer improves the field; the owner takes the field from the buyer and the buyer collects the value of the field from the Meshubadim of the Ganav and he collects the fruit and improvements of the land from the property of the Ganav but not from Meshubadim.
If someone commits himself to provide for the son or daughter of his wife from a previous marriage the provisions are collected from the property of the husband but not from Meshubadim.
If a Shtar Chov or a Kesuvah doesn't explicitly state that all of my properties Meshubad to the Chov the holder of the Shtar may not collect from Meshubadim. (4)
R. Zevid says that if someone steals an animal and it becomes pregnant or grows wool and the appreciation is still on the animal he must return the animal with the appreciation according to R. Yehudah.
R. Shimon holds that even if the appreciation is still on the animal the Ganav is Koneh the appreciation with a Shinuy and he only pays the value of the animal that it was worth at the time that it was stolen.
R. Papa says that R. Yehudah holds that if the appreciation is still on the animal the Ganav is Koneh the appreciation while R. Shimon holds the Ganav only takes a percentage of the appreciation just as a person who improves an animal takes a percentage for his work.
If someone steals a cow and it becomes pregnant and it gives birth or he steals a sheep and wool grows on it and he shears it he must pay the value of the cow or the sheep that it was worth at the time of the Geneivah.
If two brothers inherited land and they improved the land before they divided it among them the Bechor must compensate his brother for 50 % of the improvements on the extra portion that he took for his Bechorah and he may compensate them with money. (5)
When a Ba'al Chov takes land from the buyer or inheritor of his debtor he must compensate them for the improvements that they made on the land and he may compensate them with money and not land.
Shmuel says that when a Ba'al Chov collects land from the buyer of his debtor he may collect from the improvements that they made on the land and even from fully grown grain. (6)
A BIT MORE
1. Even though he is Koneh the wool and offspring with a Shinuy R. Meir holds that the Rabanan penalize a Ganav who steals b'Mezid and he may not keep the offspring or the wool.
2. R. Meir holds that servants are the same as land and a Ganav is not Koneh land that he stole and therefore even though it underwent a Shinuy he is not Koneh and he returns it as it is.
3. Even though dyed wool is worth more however the craftsman is Koneh the dyed wool with a Shinuy and may keep the dyed wool and return the value of the non-dyed wool.
4. This is in accordance with R. Meir who holds that if the Shtar doesn't state that he may collect from Meshubadim it is not regarded as a Ta'us Sofer (mistake of the scribe) and may not be collected from Meshubadim.
5. Although the Bechor inherits an extra portion he doesn't receive an extra portion of the improvements and therefore he must compensate his brother for 50% of the improvements on the extra portion.
6. Even though previously Shmuel said that a Ba'al Chov must compensate the buyer for the improvements on the land that was referring to a case that the land without the improvements was worth the entire amount that was owed to him and in this case he was owed the amount that the land was worth together with the improvements.
A DOUBLE DECREE
If someone steals a beam and uses it in the construction of a building the Rabanan decreed that he may return the value instead of the beam in order to encourage him to do Teshuvah.
The Ketzos ha'Choshen asks that Rashi states in Maseches Me'ilah that if a stone is used in the construction of a building it is regarded as a Shinuy and the Ganav is Koneh the stone. If so, why is it necessary for the Rabanan to decree that that he may return the value instead of the beam? He is Koneh the beam with a Shinuy! The Ketzos ha'Choshen answers that the Tur says that a change in a stolen item is only regarded as a Shinuy if the item changed its name as well. A beam retains its name and therefore it is not a Shinuy even if it is used in a building but a stone that is used in a building changes its name and therefore the Ganav is Koneh with a Shinuy.
A DOUBLE PORTION
A Bechor does not take two portions from the appreciation of the property from improvements that were made after the death of his father. He must evaluate the appreciation and give a percentage of the appreciation to the brothers. (Shulchan Aruch CM 278:6)
The Bechor takes two portions from the property of his father, however he only has a right to one portion of the appreciation and therefore the appreciation of the second portion must be evaluated and he must split it with his brothers. (Sma)
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